Category Archives: Courts

Health Care Subsidies

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President Barack Obama sent his HHS Secretary, Sylvia Mathews Burwell, to Congress to testify before the House Ways and Means Committee about, among other things, his plans should the Supreme Court rule against Federal subsidies for those who bought health plans through ObamaMart and not through state exchanges as Obama’s ACA requires. He said, through her,

If the court says that we do not have the authority to give subsidies, the critical decisions will sit with the Congress and states and governors to determine if those subsidies are available[.]

This is openly cynical. “If the court says…” the subsidies are not available, they’re not available. Full stop.

The Governors and states made their own critical decisions clear five years ago when, in full view of the ACA’s statement that Federal subsidies are available only through state exchanges, they carefully and with forethought declined to create state exchanges.

The Congress made its own critical decision all those years ago when it wrote the law that said Federal subsidies would not be available except through state exchanges.

Of course the better policy wonk than his policy wonks knows this, and he knew it when he sent Burwell up there to spout that nonsense. The only way the Court can upend those critical decisions will be through a twisted interpretation of the text of the law that leads them to uphold the Federal subsidies.

Hmm….

The SEC and its In-House Judges

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I wrote about this a bit ago; here’s a follow-up via a related case.

A federal judge ruled Monday that the Securities and Exchange Commission’s use of an in-house judge to preside over an insider-trading case was “likely unconstitutional,” a potential blow to the agency’s controversial use of its internal tribunal.

This is another case concerning the SEC’s practice of stacking cases it brings against alleged miscreants by using its own judges to decide the matter.

“Discrimination”

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The Supreme Court on Monday said a Muslim woman who applied to work at Abercrombie & Fitch Co can raise discrimination claims without proving the company intentionally avoided hiring her because she wore a head scarf for religious reasons.

So, I can cry discrimination on no better complaint than that I have one? I don’t even have to show that there’s a foundation for one?

Justice Clarence Thomas, in dissent, thought there ought to be a reason.

I agree with the Court that there are two—and only two—causes of action under Title VII of the Civil Rights Act of 1964 as understood by our precedents: a disparate-treatment (or intentional-discrimination) claim and a disparate-impact claim. Our agreement ends there.   Unlike the majority, I adhere to what I had thought before today was an undisputed proposition: Mere application of a neutral policy cannot constitute “intentional discrimination.” Because the Equal Employment Opportunity Commission (EEOC) can prevail here only if Abercrombie engaged in intentional discrimination, and because Abercrombie’s application of its neutral Look Policy does not meet that description, I would affirm the judgment of the Tenth Circuit.

The majority should have listened better to Thomas.

The Supreme Court’s ruling can be seen here.

The 5th Circuit and “Immigration”

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Recall President Barack Obama’s DAPA program—Deferred Action for Parents of Americans and Lawful Permanent Residents—which he created by Executive…action…and which allows illegal aliens to register for work, get that work, obtain driver’s licenses, and otherwise avoid the consequences of their illegal entry into the US. Last February a Federal District Judge issued an injunction blocking implementation of DAPA and the creation of government bodies whose purpose would have been that implementation. The injunction was to last until the underlying suit, brought by 26 States, was itself adjudicated.

The 5th Circuit upheld that injunction, ruling in part,

The states have shown that “issuance of the stay will substantially injure” them. A stay would enable DAPA beneficiaries to apply for driver’s licenses and other benefits, and it would be difficult for the states to retract those benefits or recoup their costs even if they won on the merits. That is particularly true in light of the district court’s findings regarding the large number of potential beneficiaries, including at least 500,000 in Texas alone.

But that was the purpose of Obama’s action: to bring these folks in, with actual amnesty (not even the light punishment that too many on the right bleat about being amnesty), permanently.

And

The government identifies several important interests: it claims a stay would improve public safety and national security, provide humanitarian relief to the family members of citizens and lawful permanent residents, and increase tax revenue for state and local governments. To the contrary, however, and only by way of example, on March 16, 2015, the Attorney General, in opposing a motion to stay removal in an unrelated action, argued to this very panel that “granting a stay of removal…would impede the government’s interest in expeditiously…controlling immigration into the United States.” Presumably, by referring to “the government’s interest,” the United States is referring to “the public interest.”

Presumably, no sarcasm was intended by that last….

Never mind that DoJ has been caught—again—talking out of both sides of its collective mouth.

On the matter of Obama’s infamous “prosecutorial discretion,” the court offered this:

DAPA’s version of deferred action, however, is more than nonenforcement: it is the affirmative act of conferring “lawful presence” on a class of unlawfully present aliens. … “[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.'” Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification.

The court’s ruling can be seen here.

Another Judge Gets It Right on Guns

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People in the nation’s capital no longer have to show a good reason to get a permit to carry concealed handguns outside their homes and businesses.

The District of Columbia’s police chief said Tuesday that she’s dropping this requirement, a centerpiece of the city’s handgun-control legislation, after a federal judge issued a preliminary injunction against it.

That’s entirely appropriate since government does not get to dictate the reasons for a man owning a gun.

The city’s law, one of the nation’s toughest, says a person must show a “good reason to fear injury to his or her person or property” or another “proper reason for carrying a pistol” to get a concealed-carry permit.

Balance that against the 2nd Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Try as I might, I can’t find anything in that Amendment, neither clause nor syllable, that says “agreeable with reasons approved by the government.”